Citation Nr: 0412976
Decision Date: 05/19/04 Archive Date: 05/25/04
DOCKET NO. 03-16 792 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to an initial evaluation higher than 50
percent for post-traumatic stress disorder (PTSD).
2. Entitlement to service connection for asthma and reactive
airway disease.
REPRESENTATION
Appellant represented by: Antonio E. Bendezu, Attorney
at Law
ATTORNEY FOR THE BOARD
Van Stewart, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1944 to
May 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of rating decisions dated in April 2003 and
August 2003 by the Department of Veterans Affairs (VA)
Regional Office (RO) in Lincoln, Nebraska. By the April 2003
rating decision, the RO granted service connection for PTSD
and evaluated it as 50 percent disabling, effective from
March 14, 2003. By the August 2003 rating decision the RO
denied service connection for asthma and reactive airway
disease.
The United States Court of Appeals for Veterans Claims
(Court) has indicated that a distinction must be made between
a veteran's dissatisfaction with the initial rating assigned
following a grant of service connection (so-called "original
ratings"), and dissatisfaction with determinations on later
filed claims for increased ratings. See Fenderson v. West,
12 Vet. App. 119, 125-26 (1999). Inasmuch as the PTSD
evaluation issue currently under consideration was placed in
appellate status by a notice of disagreement expressing
dissatisfaction with an original rating, the Board has
characterized the PTSD rating issue on appeal as set forth
above. (Consideration of this rating question is deferred
pending completion of the development sought in the remand
that follows the decision below.)
FINDING OF FACT
The veteran does not have asthma or restrictive airway
disease that began in service or was the result of any in-
service exposure to asbestos.
CONCLUSION OF LAW
The veteran does not have asthma or restrictive airway
disease that is the result of disease or injury incurred in
or aggravated by active military service. 38 U.S.C.A.
§§ 1110, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304
(2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran filed a claim for compensation in March 2003,
claiming his diagnosed asthma and reactive airway disease,
which he characterized as a lung condition, resulted from
exposure to asbestos during military service. The record
shows the veteran was a fireman in the United States Navy,
which job entailed working on ships' propulsion systems that
conceivably could have exposed him to asbestos.
The veteran's service medical records (SMRs) are negative for
any complaint of any lung condition prior to or during
military service. The record of the veteran's separation
examination in May 1946 contains chest x-rays and an
examiner's assessment that the x-rays were essentially
negative, and that the veteran's respiratory system was
normal. (The veteran makes no claim that his current
pulmonary disorders were manifest while in service.)
The most recent report of record of a chest x-ray is dated in
December 2000. That report from the VA Medical Center (VAMC)
in Omaha, Nebraska found only mild hyperinflation. The x-ray
was otherwise reported as clear, without focal infiltrate,
pulmonary edema, or pleural effusion. No masses were seen.
A pulmonary consult note from VAMC Omaha dated in February
2001 included a diagnosis of reactive airway disease,
exacerbated by gastroesophageal reflux disease, and by fall
and winter allergens. Another pulmonary consult note
authored by the same physician in March 2002 included the
same diagnosis.
The veteran submitted a December 2002 statement from K.M.,
M.D., which pointed out that the veteran worked in an engine
room around asbestos and lead paint while in service, and
included an opinion that it was conceivable that some of his
pulmonary problems may have been exacerbated by his exposure
while in military service.
Based on Dr. M.'s statement, the veteran was scheduled for a
VA examination. In a letter dated in June 2003 the veteran's
representative stated that the veteran was not refusing to
attend the scheduled VA examination, but rather was
requesting that the RO wait until results from pulmonary
function testing at the St. Francis Medical Center, Grand
Island, Nebraska were received and considered by the RO. The
veteran's representative also stated that, if VA determined
that this evidence was inadequate, the veteran agreed to
attend a VA examination. The veteran did not report for the
scheduled examination, submitting instead the promised
results from pulmonary function testing at St. Francis
Medical Center.
After the new evidence was received, the RO replied to the
veteran's representative that the new evidence was not
sufficient to adjudicate the claim and informed the
representative in an email dated in July 2003 that an
examination was necessary and would be scheduled. The
veteran was notified of the rescheduled examination, and he
declined to attend. The RO then asked VAMC Omaha to provide,
based on the evidence of record, a medical opinion regarding
any possible connection between any current lung condition
and the veteran's alleged exposure to asbestos. The record
contains the report of VA doctor I.W., M.D., who, after
reviewing the record in its entirety, determined that it did
not appear that the veteran's current lung condition was
related to asbestos exposure in-service because there were no
chest x-ray findings of asbestosis. Dr. W. further opined
that it appeared that the veteran's reactive airway disease
and asthma were instead secondary to reflux disease and
allergies. The examiner additionally opined that the
veteran's current lung condition was not aggravated by
asbestos exposure. The examiner also noted that a current x-
ray could not be obtained because the veteran had cancelled
his scheduled examinations.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110. Service connection may also
be granted for any injury or disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease or injury was incurred
in service. 38 C.F.R. § 3.303(d).
The clinical diagnosis of asbestosis requires both (1)
radiographic evidence of parenchymal lung disease and (2) a
history of exposure to asbestos. M21-1, Part VI, 7.21(c)
(August 19, 2002). Radiographic changes indicative of
asbestos exposure include interstitial pulmonary fibrosis
(asbestosis), pleural effusions and fibrosis, pleural
plaques, and mesotheliomas of pleura and peritoneum. M21-1,
Part VI, 7.21(a)(1) (August 19, 2002). Some of the major
occupations involving exposure to asbestos include mining,
milling, work in shipyards, demolition of old buildings,
carpentry and construction, manufacture and servicing of
friction products such as clutch facings and brake linings,
manufacture and installation of roofing and flooring
materials, asbestos cement and pipe products, military
equipment, etc. M21-1, Part VI, 7.21(b)(1) (August 19,
2002). High exposure to asbestos and a high prevalence of
disease have been noted in insulation and shipyard workers.
M21-1, Part VI, 7.21(b)(2) (August 19, 2002).
Having worked in the ship's engine room while in service it
is possible that the veteran came into contact with asbestos,
though the degree to which he was exposed is impossible to
determine. In any event, even if exposure to asbestos is
conceded, the evidence does not show that the veteran has
asbestosis and this was noted by the VA reviewer. The
veteran's most recent x-rays, taken in December 2000, showed
that the veteran's lungs were mildly hyperinflated but
otherwise clear. Indeed, the VA examiner determined that it
did not appear that the veteran's current lung condition was
related to asbestos exposure in-service because there were no
chest x-ray findings of asbestosis. Thus, while the veteran
is currently diagnosed with asthma and reactive airway
disease, it is clear from the record that the veteran does
not have a lung disorder caused by asbestos. The Board gives
greater weight to the VA reviewer's opinion in this regard
because he reviewed the entire record and provided detailed
reasons for his opinion, something not done by Dr. K. M.
Indeed, Dr. K. M. reported merely that it was conceivable
that some of the veteran's pulmonary problems may have been
exacerbated by asbestos exposure, without further analysis of
the record or x-rays.
In light of the evidence and based on this analysis, the
Board finds that the preponderance of the evidence is against
the claim of service connection for asthma or reactive airway
disease. As noted above, the more persuasive opinion weighs
against the veteran's claim and there has been no evidence or
contention suggesting that either problem had its onset
during the veteran's military service. Because the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine does not apply. Gilbert v.
Derwinski, 1 Vet. App. 49, 57 (1990); 38 C.F.R. § 3.102.
Accordingly, the Board concludes that service connection is
not warranted, to include as caused by asbestos.
In adjudicating this issue, the Board has considered the
provisions of the Veteran's Claims Assistance Act (VCAA)
which was signed into law on November 9, 2000. On August 29,
2001, VA promulgated final regulations to implement the
provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29,
2001) (codified as amended at 38 C.F.R §§ 3.102, 3.156(a),
3.159 and 3.326(a) (2003)). Among other things, the VCAA and
implementing regulations require VA to notify the claimant
and the claimant's representative, if any, of any information
and any medical or lay evidence not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant. See Quartuccio v. Principi, 16 Vet. App. 183
(2002).
The Board notes that the veteran was apprised of VA's duties
to both notify and assist in correspondence dated in March
2003, less than one month after the veteran's claim was
received, and well before the RO's adjudication of the
veteran's claim in August 2003.
Specifically regarding VA's duty to notify, the February 2002
notification to the veteran apprised him of what the evidence
must show to establish entitlement to the benefit sought,
what evidence and/or information was needed from the veteran,
what information VA would assist in obtaining on the
veteran's behalf, and where the veteran was to send the
information sought. See Quartuccio, supra. Additionally,
the RO informed the veteran of the results of its rating
decisions, the procedural steps necessary to appeal, and
provided a statement of the case (SOC) reporting the results
of the RO's de novo review following the veteran's notice of
disagreement.
Regarding VA's duty to assist, the Board notes that the RO
obtained the veteran's service medical records (SMRs). The
veteran provided, and the RO incorporated into the record for
consideration, the opinion of his own doctor, discussed
above, and the results of the pulmonary function tests
conducted at St. Francis Medical Center, also discussed
above. The veteran was twice scheduled for a VA medical
examination that would have provided more recent radiographic
evidence, but in each case the veteran failed to attend.
(The provisions of 38 C.F.R. § 3.655 require that, when the
veteran, without good cause, fails to report for a required
VA examination in an instance where he is pursuing an
original claim, VA must rate based on the available evidence
of record.) Given the standard of the regulation, the Board
finds that VA has no duty to inform or assist that was unmet.
ORDER
Entitlement to service connection for asthma or reactive
airway disease is denied.
REMAND
A psychiatric examination has been conducted by the veteran's
civilian psychologist M.C. and psychiatrist C.M., M.D. in
February 2003. The examination report shows that the veteran
was well dressed, well groomed, and somewhat businesslike.
The examiner reported that the veteran was a fair historian.
The examiner found the veteran's flow of conversation and
thought to be essentially unremarkable, except when the
veteran became exited, at which time the veteran's manner and
pressured speech became more conspicuous. Articulation and
syntax were found to be within normal limits, and his ability
to keep his association within realistic limits was "quite
good."
Affect and mood were found to be somewhat variable, but not
to a serious degree. The examiner found that the veteran
revealed some depressive features in the manner in which he
spoke and in the way he looked, revealing some mild anxiety.
Mental content revealed no particular preoccupations,
compulsions, delusions, or paranoid ideations. The examiner
found the veteran to be a normal individual in terms of
personality functioning, but with some demonstrable
personality traits that were compulsive or perhaps even
obsessive when it came to relating his service experiences.
Other than a partial hearing loss, the examiner found the
veteran had adequate sensorium, and appeared within
reasonably intelligent limits and with an average fund of
general information.
The examiner described the veteran as being within normal
limits in terms of the type of people that would be seen
within a community. The examiner noted that the veteran had
ongoing social relationships with his family and church, but
did not seek to expand his social circle to others. It was
felt that his concentration was much poorer than shown on
recall testing and his ability at abstraction was extremely
poor. His judgment was considered questionable. Based on
the veteran's description of his difficulties, the examiner
determined that the veteran was, for all practical purposes,
unemployable, based primarily on the veteran's reported
impatience and temper. It was also felt that he could
comprehend instruction, but the examiner was not sure that
the veteran would go to the limits of finishing any project
he started. The examiner's assessment was that the veteran
was not skilled socially enough to produce human
relationships that would be smooth enough to be carried out
in gainful employment. It was felt that the veteran would
not govern his emotions under ordinary stress, and that he
did not have the flexibility to adapt to new situations,
especially in a competitive setting. The examiner found PTSD
and a depressive disorder, and assigned a global assessment
of functioning (GAF) score of 46.
In assessing the evidence of record, it is important to note
that the GAF score is a scale reflecting the "psychological,
social, and occupational functioning on a hypothetical
continuum of mental health-illness." Richard v. Brown, 9
Vet. App. 266, 267 (citing DSM-IV, p. 32). A GAF score of 41
- 50 is defined as "Serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting)
OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job."
Diagnostic and Statistical Manual of Mental Disorders 32 (4th
ed. 1994) (DSM-IV). Given the specific findings made by the
February 2003 examiner, especially with respect to the
veteran's day-to-day functioning, a question is raised as to
whether the assessment of unemployability and a GAF score of
46 accurately reflects the veteran's level of disability due
to PTSD. This is especially difficult because the examiner
found more than one psychiatric disability--PTSD and a
depressive disorder. Consequently, in order to assess the
level of disability due solely to PTSD, an examination is
required.
Accordingly, this issue is REMANDED to the RO for the
following action:
1. The RO should schedule the veteran
for a VA examination by a psychiatrist.
Psychological testing should be conducted
with a view toward determining the level
of disability due solely to PTSD. The
psychiatrist should review the entire
record, including the psychological test
results, interview the veteran, and make
findings sufficient to apply the rating
criteria found at 38 C.F.R. § 4.130,
Diagnostic Code 9411 (2003). The
examiner should specifically indicate
whether or not the veteran is
unemployable due solely to his PTSD. A
GAF score reflecting disability due
solely to PTSD should be assigned, and an
explanation of the score's meaning should
be set forth. If the examiner's ultimate
opinion differs from the one provided by
the private examiner in February 2003,
the examiner should explain why a
different conclusion was reached.
2. The RO should ensure that the
examination report complies with the
request above. The RO should also take
steps necessary to comply with the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096
(2000) (codified as amended at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002)).
Thereafter, the RO should re-adjudicate
this rating issue. (Consideration should
be given to whether staged ratings should
be assigned. Fenderson, supra.) If the
benefit sought is not granted, a
supplemental statement of the case should
be issued.
After the expiration of the period allowed for response, the
case should be returned to the Board. The appellant need
take no action at this point, but he has the right to submit
additional evidence and argument on the matter the Board has
remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369
(1999). The RO should act on this claim in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003), (to be
codified at 38 U.S.C. §§ 5109B, 7112).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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